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Lastest Judgments from the Federal Court

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    MIGRATION - where appellant claimed to be a Hazari Shia from Afghanistan - where appellant lodged an application for a Safe Haven Enterprise visa, claiming to fear harm from the Taliban due to his Hazari ethnicity, Shia religion and as an Afghani who is easily identified as a person who has resided in Pakistan - where delegate of the Minister for Immigration and Border Protection (Delegate) refused to grant the appellant a visa - where appellant's visa application was referred to the Immigration Assessment Authority (IAA) - where the IAA affirmed the Delegate's decision - where appellant sought judicial review of the IAA's decision not to grant the appellant a Protection visa - where Federal Circuit Court made an order that the appellant's application for judicial review of a decision of the IAA be dismissed MIGRATION - appeal from an order made by the Federal Circuit Court - whether primary judge erred in failing to find that the IAA failed to consider conflicting country information before it when assessing the reasonableness of the appellant's relocation - whether IAA failed to consider all of the evidence relevant to whether the appellant's relocation was reasonable - whether primary judge erred in failing to find that the IAA failed to complete its statutory task of determining whether relocation was reasonable - whether IAA failed to take into account its own finding that the appellant would be exposed to societal discrimination if he were to relocate to Mazar-e-Sharif in Afghanistan - whether IAA failed to examine with the "required referability" to the appellant's particular circumstances, specifically, his ability to obtain employment in Mazar-e-Sharif

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    REPRESENTATIVE PROCEEDINGS -- representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth) -- application for leave to appeal from orders granting leave to amend statement of claim to alter description of the group members -- parties under misapprehension as to existing class composition --discussion of powers within Part IVA to allow amendments to group definition and the legal consequences of amending group definition -- observations as to the need for certainty in class composition and inaptness of analogues from non-representative proceedings to changing class composition -- whether error by primary judge in choosing a cut-off date -- no error established -- whether amendments to class composition should relate back to commencement of proceeding -- amendment should take effect from date of filing of amended pleading-- leave to appeal granted in part and appeal allowed in part - cross appeal dismissed PRACTICE AND PROCEDURE — application for leave to appeal in relation to allowing an amendment to add further allegations of a failure to warn where evidence to support allegations was held to have been received and the amendment was contended to be within the scope of existing pleadings or consistent with the way the case was run at an initial trial — leave to appeal refused

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    INDUSTRIAL LAW - appeal from decision of the South Australian Employment Tribunal (SAET) dismissing application to re-open proceedings and holding that it did not have jurisdiction - whether s 69(3) of the Statutes Amendment (South Australian Employment Tribunal) Act 2016 (SA) was effective to transfer proceedings in the exercise of federal jurisdiction to the SAET - whether by reason of s 16 of the Acts Interpretation Act 1915 (SA) the Industrial Relations Court of South Australia (IRCSA) continues to have jurisdiction with respect to the Appellant's claim under Workplace Relations Act 1996 (Cth). Held: SAET did not have jurisdiction to deal with reopening application and the IRCSA continues to have that jurisdiction.

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    EXTRADITION - appeal from decision of the Federal Court dismissing application for judicial review and confirming orders determining appellant eligible for surrender to Indonesia - whether money laundering offence in request for extradition capable of being an "extradition offence" within the meaning of the Extradition Act 1988 (Cth) - whether statement of conduct deficient with respect to money laundering offence - appeal dismissed

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    MIGRATION - appeal from Federal Circuit Court of Australia - judicial review by that court of Immigration Assessment Authority (Authority) decision - Safe Haven Enterprise (Class XE) (subclass 790) visa application -- whether the Authority failed to consider material submitted by appellant - whether the Authority made its decision based upon findings and inferences of fact that were available on the material before it

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    MIGRATION - appeal from orders made by primary judge dismissing application for judicial review of decision of Immigration Assessment Authority which affirmed decision of delegate of first respondent to refuse subclass 790 visa to appellant - where Authority accepted appellant's account of events but found that appellant did not have well-founded fear of persecution due to changed country circumstances - ground 1: whether primary judge erred in failing to find jurisdictional error on part of Authority in failing to consider "what if I am wrong?" because of doubts as to whether the appellant had an imputed profile that could create a well-founded fear of persecution - held: the primary judge did not err in finding doubts relied upon not held by Authority - ground 1 dismissed - leave to rely on grounds raising issues not raised before primary judge otherwise refused - held: appeal dismissed with costs

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    CONSUMER LAW - comparative advertising of pain relief products in the treatment of common headaches, including tension-type headaches - whether advertising was misleading or deceptive, or likely to mislead or deceive - whether advertising made false representations

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    MIGRATION - Tribunal finding appellant lacked credibility - credibility finding overwhelming other supporting evidence - new grounds sought to be advanced on appeal - no error by the Federal Circuit Court

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    ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal on questions of law - where Tribunal had affirmed a decision of the Inspector-General in Bankruptcy to refuse to extend the time in which the applicant could file an application for review of the remuneration of her trustees - whether Tribunal denied the applicant procedural fairness - whether there was no evidence to support findings made by the Tribunal - whether Tribunal failed to consider applicant's submissions - whether Tribunal's reasons were inadequate

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    PRACTICE AND PROCEDURE - representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) - open class - application for common fund order - applicable principles - whether appropriate to make common fund order - common fund order made

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    MIGRATION - appeal from decision of Federal Circuit Court - whether Tribunal failed to comply with obligations in s 425(1) of the Migration Act 1958 (Cth) - whether Tribunal failed to comply with s 499 of the Migration Act 1958 (Cth) - where most recent country information indicated appellant requires family member to act as guarantor to obtain bail upon return to Sri Lanka - where no evidence Tribunal assumed guarantor was available - where Tribunal considered outdated country information regarding bail requirements - appeal allowed

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    PRACTICE AND PROCEDURE - application for preliminary discovery to ascertain description of prospective respondent - where allegedly untrue representations were made online by an unknown publisher - whether legal professional privilege applies to a person's communication of their name to a solicitor whom they wish to engage

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    CONSUMER LAW - pecuniary penalty for contraventions of the Australian Consumer Law by the making of false or misleading representations - appropriate application of the course of conduct principle - aggregate of penalties where multiple contraventions occurred - whether a corrective publication order is necessary given length of time since contraventions occurred - whether an order for a compliance program is appropriate. COSTS - application for party and party costs by Applicant - apportionment of costs not appropriate given that the claims on which ACCC did not succeed involved similar factual enquiries to that on which it did succeed - orders as to costs when Applicant has acted in public interest in initiating proceedings.

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    MIGRATION - appeal from Federal Circuit Court - grounds not raised before primary judge - no merit in grounds. Held - dismissed.

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    MIGRATION - appeal against Federal Circuit Court - fast track division - whether Tribunal took relevant information into account - Authority not obliged to consider documents - appeal dismissed.

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    MIGRATION - appeal against Federal Circuit Court - not at large before Federal Circuit Court - grounds of appeal - no merit in grounds of appeal. Held - dismissed.

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    PRACTICE AND PROCEDURE - application for extension of time - whether prospects of success - evidence before the Tribunal which potentially corroborated applicant's claim - Tribunal refused to receive that evidence - arguable case of jurisdictional error. Held - extension granted.

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    MIGRATION - appeal against Federal Circuit Court - application for review by Administrative Appeals Tribunal of refusal of temporary business entry visa - when there is no approved sponsor - whether Tribunal lacked jurisdiction - Migration Act 1958 (Cth) s 338(2)(d) - whether Tribunal denied appellant procedural fairness before reaching conclusion it lacked jurisdiction. Held - dismissed.

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